Litigating Birthright Citizenship in the Shadow of World War II: The Continuing Relevance of a Forgotten Case

Authors

• Rachel E. Rosenbloom, Northeastern University School of Law

Abstract

With the question of birthright citizenship before the Supreme Court this term in Trump v. Barbara, this Article explores the last time that federal courts confronted an attempt to restrict birthright citizenship. It tells the story of two lawsuits, Regan v. King and Fisk v. Wade, filed in 1942 by organizations seeking to overturn United States v. Wong Kim Ark, the 1898 Supreme Court decision that affirmed the broad scope of birthright citizenship under the Fourteenth Amendment. While the cases left little mark doctrinally, their history sheds light on a dimension of birthright citizenship litigation that has received little prior attention: the degree to which restrictionist arguments, past and present, have relied on the statutory frameworks of their respective eras. The 1942 litigation, which represented the culmination of two decades of efforts by anti-Asian groups to strip Japanese Americans of citizenship, sought to tether judicial interpretation of the Fourteenth Amendment’s Citizenship Clause to the racial exclusions then embodied in the immigration and naturalization laws. While the restrictionist arguments being put forward today are quite different, they, too, are deeply dependent on a particular statutory framework – namely, the array of late-twentieth century legislative changes that have collectively produced the contemporary construction of immigrant illegality. This Article argues that if courts were to allow the interpretation of the Fourteenth Amendment’s Citizenship Clause be guided by the shifting configurations of exclusion embodied in U.S. immigration policy, they would be defeating one of the central aims of the Fourteenth Amendment: to place birthright citizenship beyond the reach of repeal by a subsequent Congress.

Recommended Citation

Rachel E. Rosenbloom, Litigating Birthright Citizenship in the Shadow of World War II: The Continuing Relevance of a Forgotten Case, 31 Mich. J. Race & L. 1 (2026).
Available at: https://repository.law.umich.edu/mjrl/vol31/iss1/2